Estate of Brower
The appellant, is a remainder beneficiary of a trust created by her father and his wife, Creighton W. Brower and Teri Alice Brower, upon the death of Creighton Brower in 2000. Teri Brower is the income beneficiary of the trust during her lifetime. This appeal concerns an estimated tax payment made by Creighton Brower shortly before his death. He made the payment from a joint checking account he maintained with his wife, but it was to be applied toward a tax liability arising from his separate property interest in a closely held corporation. When a portion of the payment was refunded after Creightons death, the trustees of the trust petitioned the probate court for instructions on how to allocate the refund as between the trust and Teri Brower. The court tentatively ruled the entire refund belonged to Teri Brower as Creightons surviving spouse. But Pomeroy, in a belated objection to the proposed ruling, contended the refund should be divided instead between Teri and the trust according to a pro rata allocation established by an agreement settling Creightons estate. The court, following a hearing, adopted this latter view.
Pomeroy then filed a motion to recover her costs and attorney fees, together with prejudgment interest, under the common fund doctrine, on the theory her intervention had created or preserved a common fund for the benefit of all the remainder beneficiaries. Both the trustees and Teri Brower opposed the motion. The court denied it, and Pomeroy has appealed. Court reverse the courts order insofar as it finds Pomeroys efforts did not benefit the remainder beneficiaries.
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